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At the intersection of judicial policy and civil rights the U.S. Supreme Court delivered two divergent, landmark rulings last month with national implications. In United States v. Windsor (570 U.S. 2013), it delivered a victory for the LGBT community by providing federal benefits to married gay couples. Whereas in Shelby County v Holder (570 U.S. 2013), it delivered a defeat for blacks specifically and minorities in general by finding a key provision of the Voting Rights Act of 1965 (VRA) unconstitutional. The Supreme Court of the United States (SCOTUS) struck down section 4 of the VRA, which means states and jurisdictions with a history of voter suppression will no longer be required to obtain federal preclearance before changing voting laws. These two rulings create a conundrum: civil rights were advanced for one minority population and abrogated for another. This column provides an overview of the VRA, a brief analysis of the Shelby County case, and the policy implications for America.
Voting Rights Act of 1965
For more thab 40 years, the Voting Rights Act of 1965 has guaranteed minorities “equal access to the ballot…by protecting racial and language minorities” (http://www.aclu.org). The purpose of the VRA is to enforce the 15th amendment to the U.S. Constitution, which states, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” (U.S. Constitution, 15th Amendment, Section 1, 1870). The VRA was born out of the civil rights movement and as such has great historical and symbolical significance for this country. The U.S. civil rights movement (1958-1968) was focused on ensuring protection of rights for all people, specifically blacks. The movement addressed the widespread racial discrimination African Americans faced across the country, which manifested in three forms: 1) racial segregation, 2) violence, and 3) voter suppression. It was a period of massive racial violence. Blacks and civil rights supporters reacted to the violence by adopting nonviolence resistance using “sit-ins,” bus boycotts and marches to voice their frustrations. The Selma to Montgomery (voting rights) marches were the most known because 600 marchers were attacked by white police officers with clubs and tear gas. This historical event became known as “Bloody Sunday.” At the end of the movement, four key pieces of legislation were passed: 1) Brown v Board of Education (1954), which made separate but equal public schools unconstitutional; 2) the Civil Rights Act of 1964, which makes employment discrimination illegal; 3) the Voting Rights Act (1965), which restores voting rights as identified in the U.S. Constitution; and 4) the Civil Rights Act of 1968, which prevents housing discrimination. These four pieces of legislation are symbolic of the success of the civil rights movement and commemorate the lives of those who struggled, fought and died for democracy, freedom and the right to vote.
Dismantling of the Voting Rights Act (VRA)
The right to vote, which is considered the most cherished right of an American, has been significantly weakened. In June of 2013 the VRA, which enforced a section of the U.S. Constitution, was gutted. Justice Ginsberg described it as a “demolition of the VRA” (570 U.S. 2013, Ginsberg, J. dissenting). In a 5-4 decision (Shelby County, Alabama v. Holder 570 US http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf ), the Supreme Court struck down a key provision, section 4b, of the 1965 Voting Rights Act (VRA). Section 4b, which identified the coverage formula for selecting jurisdictions to be subjected to preclearance on changes in voting laws, was declared unconstitutional because the formula was outdated. The 1964 formula included jurisdictions that: 1) used tests to restrict registration (literacy, moral character or a witness), or 2) had less than 50 percent of eligible voters registered to vote. It targeted nine states subjected to preclearance, which were mostly Southern: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia. As a result of the ruling, it nullified section 5, which provided a special level of federal scrutiny and oversight for states and local governments with a history of voter suppression. Basically, the U.S. Justice Department’s (DOJ) power to prevent states and local governments from enacting discriminatory voting laws was abolished. The ruling means that the U.S. Justice Department can only take steps after discriminatory state and local laws have been enacted; leaving minorities vulnerable to voter suppression, repression and redistricting.
The five conservative justices (Roberts, Scalia, Thomas, Alito, and Kennedy) voted to strike down the decision and the four liberal justices dissented (Ginsberg, Breyer, Sotomayor, and Kagan). Chief Justice Roberts argued that “In the covered jurisdictions, ‘[v]oter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.’” (570 U.S., pp. 17-18) In other words, the election of President Barack Obama and other black leaders makes the VRA obsolete. In dissent, Justice Ginsberg argued the VRA section 4 was still necessary. She stated, “The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective… Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” (570 U.S., Ginsberg, J. dissenting, p. 33). The Shelby County ruling is a clear example of court overreach. According to the 15th Amendment to the U.S. Constitution, “The Congress shall have the power to enforce this article by appropriate legislation” (1870). It does not state the Supreme Court, but rather Congress, has the right and authority to enforce the right to vote. In response, Chief Justice Roberts points out that Congress can create a new coverage formula. In order to enforce the VRA preclearance, Congress would need to pass a bill with a new coverage formula for designating jurisdictions subject to preclearance. Once this happens the Department of Justice can apply Section 5 of the VRA and require covered jurisdictions to submit proposed voting changes (voter identification, re-districting, etc.) before the bill is enacted. However, given the current Congressional gridlock (113th, political vitriol and federal sequestration) it is unlikely that consensus will be reached on a formula.
The constitutional voting rights of minorities are pitted against the colorblind majority of the U.S. Supreme Court. The ruling gutted the VRA and begun what civil rights activists fear, the dismantling of voter rights across the country. According to historian Gary May in his book Bending Toward Justice: The Voting Rights Act & The Transformation of American Democracy (2012), the dismantling of minority voting rights started several years prior to the Supreme Court ruling. States across the county have been proposing and enacting bills to restrict minority voting. This comes in the form of requiring photo identification, proof of U.S. citizenship, English-only ballots, restrictions on early and absentee voting, and voter registration and re-districting. For example, the Justice Department denied North Carolina’s request to re-district eight times. According to the Brennan Center for Justice, since the beginning of 2013, seven states have passed restrictive voting laws: four new states now require photo identification to vote (AK, ND, TN, and VA), one state (NE) reduced the early voting period, another state (IN) permits challengers to require photo ID, and one state (MT) placed on the 2013 ballot to eliminate voter registration on election day. (Brennan Center for Justice, Election 2012). These are attempts to restrict minority voting and are a reflection of the racism, bias and prejudice that exists in the social fabric of America.
With the swearing in of our first black president it was hoped that we had entered a post-racial America, yet evidence does not support this claim. America is a racially polarized country. We have contentious race relations as evidenced by the recent Trayvon Martin case, which incited rallies across the country. Segregation remains high in much of the country (Iceland 2009; Logan and Stults 2011) separating blacks in urban areas and whites in suburbs. In America, blacks and Hispanics are more likely to be incarcerated, live in poverty, attend inadequate schools, drop out of high school, not obtain a college degree, receive lower quality health care, experience higher morbidity and mortality rates, and less likely to own a home. Moreover, blacks are more likely to face the death penalty. And as a result of the Supreme Court ruling, they will be less likely to vote.
Author: Lorenda Naylor; PhD, MPH, MPA; is an associate professor in the College of Public Affairs at the University of Baltimore.